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Enrique Bravo, a teenager, was working as a dishwasher at Sergio’s El Ranchito restaurant. After hours, after his manager had left, he and some coworkers stole beer from the restaurant’s refrigerator and drank them. Bravo, who had never drank alcohol before, became intoxicated. While driving home, he struck the plaintiff’s vehicle.

Plaintiffs sued the restaurant for negligence. The restaurant moved for summary judgment, arguing that there was no evidence Bravo was acting in the course and scope of his employment at the time of the accident. Plaintiffs opposed the motion on the ground that they were not claiming respondeat superior liability at all and instead were claiming negligent supervision. In reply, the restaurant explained how Bravo’s deposition (which was not taken until after the moving papers were filed) conclusively negated the elements of negligent supervision. The trial court granted summary judgment. Plaintiffs appealed, arguing only that summary judgment was procedurally improper because the restaurant did not produce the evidence negating negligent supervision until its reply papers.

The Court of Appeal, Fourth District, Division Three (O’Leary, Moore, and Thompson) affirmed in an unpublished opinion. The court held that the restaurant shifted the burden to plaintiffs to show a triable issue by showing there was no evidence to support the negligence allegations against it. Once plaintiffs produced Bravo’s deposition testimony in connection with their opposition papers, the restaurant was entitled to rebut that evidence in its reply and explain why that evidence did not create a triable issue. In any event, plaintiffs failed to show that they objected to consideration of the new evidence and arguments, so the issue was waived. (The court did not reach our argument that the negligent supervision theory failed on its face given the statutory immunity for serving alcohol).